There are two commonly recognized "theories" of criminal law: utilitarianism, which sees criminal law's purpose as preventing future harms; and retributivism, which sees criminal law's purpose as punishing past wrongs. One significant but little-discussed difference between the two theories relates to their relative scope: in a meaningful way, utilitarianism presents itself as a complete theory of criminal law, while retributivism does not.
Utilitarianism provides a comprehensive vision of criminal justice that can offer guidance, or at least a clear agenda, regarding both the content of criminal law and the best means for enforcing it. Retributivism, on the other hand, apparently speaks only to the criminal law's design, and not to its implementation. Retributive theory seems to say nothing about how to make the tradeoffs and compromises necessary to "do" criminal justice in the real world, whose inevitable resource constraints and other limitations prevent the system from imposing the full deserved punishment on every offender.
This article explores and evaluates the range of options for developing a real-world legal theory, as opposed to an idealized moral theory, of retributive punishment. It concludes that perhaps the only effective, or even plausible, option for doing so would be to adopt the approach of "consequentialist retributivism," which sees desert-based punishment as a goal to maximize rather than (as other approaches would demand) a categorical ex ante commitment. Interestingly, though this seems like the most intuitively sensible way to implement retributive justice, it is the approach with the least support in the theoretical literature. Thus, this article further seeks to advance the debate by suggesting the appeal (and perhaps the necessity) of employing the hitherto neglected perspective of consequentialist retributivism.
Available for download at http://ssrn.com/abstract=996140